Oct. 12, 2011 – The Assembly Committee on Judiciary and Ethics recently (Sept. 29) voted 6-2 to expand the scope of a proposal to change Wisconsin’s self-defense law in the context of home intrusions, a proposal the State Bar of Wisconsin’s Criminal Law Section opposed.
Nearly 30 states have enacted some form of so-called “castle doctrine” legislation, which generally gives homeowners and lawful residents greater protections to use deadly or substantial force against someone who unlawfully and forcibly enters their residence.
The bill (Assembly Substitute Amendment 3 to AB 69) recommended for passage by the Assembly committee, gives greater protections to defend against unlawful and forcible intrusions into a “dwelling,” a vehicle, and a place of business.
The original bill gave greater protections for intrusions into the "residence" only.
Use of the term “dwelling” instead of “residence,” a request made by the National Rifle Association (NRA), is significant because it encompasses "any premises or portion of a premises that is used as a home or a place of residence and that part of the lot or site on which the dwelling is situated that is devoted to residential use." Wis. Stat. section 895.07(1)(h). "Dwelling" includes other existing structures on the immediate residential premises such as driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements. Id.
AB 69 is now available to be scheduled for full consideration by the Assembly.
Impact of proposed change
Currently, it is not reasonable to use force intended or likely to cause death or great bodily (substantial) harm for the sole purpose of defending property. Wis. Stat. section 939.49(1).
Deadly force is only justified if a person reasonably believes such force is necessary to defend against imminent death or substantial harm. Section 939.48(1).
Under the proposed legislation, a court must presume a person (the property owner or lawful occupant) was justified in killing an intruder, regardless of whether the property owner reasonably believed the force was necessary to defend against imminent death or substantial harm.
The presumption applies if a person entered or was in the process of entering the property owner's dwelling, motor vehicle, or place of business unlawfully and by force.
The property owner would benefit from an instruction to the jury that use of deadly or substantial force is presumed “reasonable” if the jury finds that someone unlawfully and forcibly entered or attempted to enter the property owner’s dwelling, motor vehicle, or place of business when the property owner is occupying the property. The property owner must reasonably believe an unlawful and forcible entry occurred or was occurring.
In addition, the proposed bill would disallow a court from considering the property owner's ability to flee or retreat before using force.
The presumption would work to bar civil suits against a property owner who uses force against a person they reasonably believed entered (or was in the process of entering) the dwelling, motor vehicle, or place of business, unlawfully by force.
The State Bar of Wisconsin’s Criminal Law Section warned that the proposed castle doctrine legislation could create unintended consequences, given the nuanced workings of presumptions and evidence law that are specific to Wisconsin. For more on the Criminal Law Section’s position, read the State Bar’s original article on this legislation.
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